Ravichandran and Others vs Subbarama Iyer and Others

Thanikkachalam, J.—This appeal has been preferred against the judgment and decree rendered in O.S. No. 69 of 1977. The plaintiffs are the appellants herein. The suit is for partition and separate possession of 3/4th shares in all the A and B schedule properties for future profits and for costs of the suit.

The case of the plaintiffs is as under: The plaintiffs are the sons of the first defendant. The first defendant and his brothers Rajamannar and Gopalakrishnan who are not parties in the suit are the sons of one Govindasamy Chettiar. The said Govindasamy Chettiar was running a javuli business by manufacturing and sale of silk sarees. The manufacture and sale of silk sarees is their ancestral family business, otherwise it is known as kulachara trade. Govindasamy Chettiar died on 14.10.1964 leaving a widow by name Seethalakshmi, three sons and three daughters. The sons as one branch and the other members of the family as another branch entered into a registered partition on 30.1.1965. Thereafter on 12.7.1965, Rajamannar, Gopalakrishnan and Rengaraja, the first defendant herein divided all the joint family properties. In the said partition, the ''C'' Schedule properties were allotted to Rengaraja and the ''C'' Schedule properties are shown as A and B schedule properties in the plaint. In respect of other remaining undivided properties another partition took place on 10.10.1965. In the said partition, the properties worth Rs. 11,000 was allotted to the first defendant. The said Govindasamy Chettiar is the paternal grandfather of the plaintiffs, who are the undivided sons of the first defendant. The first defendant has two other daughters of whom one has already been married and the other daughter is yet to be married.

The plaintiffs and the first defendant are members of the joint Hindu family and the suit properties are joint family properties owned and enjoyed by them all. Therefore, the plaintiffs are entitled to 3/4th shares and the first defendant is entitled to 1/4th share. At the time of partition deeds dated 12.7.1965 and 10.10.1965 there were absolutely no family debts, and there are also no debts payable thereafter. From the lands and coconut thopes the annual income of Rs. 10,000 was received. From the family business of the silk manufacturing and sale, there was a minimum income of Rs. 6,000 to 7,000 per annum. The first defendant was in overall management of the entire suit properties ever since the date of partition dated 10.10.1965. While as, the first defendant started a new javuli shop under the name of Ramavilas Cloth Emporium at Big Street, Kumbakonam in 1967 and thereafter it was shifted to Big Bazaar Street, Kumbakonam under the name and style of Durgambiga Textiles. This business is not a kulachara trade nor the ancestral family trade. The first defendant had no skill or special experience in this line of business. At that time, he had the association of one Nagaraja Pillai who abused and misused the confidence reposed upon him by the first defendant and he led the first defendant in evil ways. The said Nagaraja Pillai had also association with the second defendant who is a money-lender. The fifth defendant is the sister''s son of the second defendant. Nagaraja Pillai, second defendant, fifth defendant and the first defendant became close associates gradually.

The second defendant created some documents to show that monies were advanced to the first defendant for the alleged business of the first defendant viz., Durgambiga Javuli Stores and also for the alleged cinema theatre business. The first defendant affixed his signature in several documents such as mortgage deeds, promissory notes, collateral security bonds etc., in favour of both the second defendant and the fifth defendant. He also contracted loans for his own immoral and illegal purposes from the third defendant by executing mortgage deeds and promissory notes etc. Since the plaintiffs questioned him, he took hostile attitude against them. The fourth defendant is purported to have filed a suit for specific performance against the first defendant in O.S. No. 76 of 1974 on an agreement of sale in respect of certain nanja lands which belonged to the joint family. The defendants 2, 3, 4 and 5 are also proceeded against the first defendant, and several decrees such as O.S. Nos. 108 of 1971,7 of 1972, 107 of 1970 and 27 of 1972 have been obtained against him and in execution of the said decrees, the defendants 2, 3 and 4 have sought to attach some of the properties of the joint family and brought to sale in court auction about which the plaintiffs had little knowledge until two weeks back. The second defendant and sixth defendant have purported to have purchased some properties in court auction.

The decree and other transactions entered into between the first defendant and the defendants 2 to 5 are fraudulent, collusive, and they are void and they will not bind upon the plaintiffs 3/4th shares. The debts even though they are true have been contracted for illegal and immoral purposes. The plaintiffs now came to know that during the course of his management he leased out some of the suit properties to defendants 7 and 9 in respect of coconut thope and items 2 and 3 of A schedule properties. Therefore they are also necessary parties to the suit. It is also necessary to make provision for the marriage expenses of the plaintiff s unmarried sister. The plaintiffs remaining in joint possession are also deemed to have remained in joint possession of the joint properties along with the first defendant. The first defendant is not willing for division of the properties inspite of demands. Hence the plaintiffs filed the present suit for 3/4th share in the immovable properties described as A schedule and movable properties described as B schedule.

The first defendant remained ex parte.

The second defendant filed his written statement. The case of the second defendant is as under: The suit itself is a speculative one, with a view to cause loss to this defendant. This defendant obtained a decree in O.S. No. 27 of 1972 against the first defendant for debts and the properties have been sold in court auction. It is not correct to state that the joint family has no debts. The joint family had only the properties which have been partitioned on 12.7.1965. The plaintiffs family is a trading family in javuli and the first defendant was doing the same. It is not correct to say that the first defendant has embarked upon any new venture or he has no skill and experience in that business. It is also not correct to state that the first defendant had become a tool in the hands of Nagaraja Pillai. The plaintiff are living with the first defendant all along. The first defendant resisted the suit in O.S. Nos. 7 of 1972 and 2% of 1972 and after contest the claim of this defendant was upheld. After obtaining the final decree on 24.8.1974, the said decree was executed. The plaintiffs herein represented by the first defendant as next friend filed claim petition in E.A. No. 58 of 1974 in E.P. No. 13 of 1974 in O.S. No. 7 of 1972 and the same was dismissed on 5.11.1975. Thereafter the above order has become final. Therefore, in the present suit they cannot attack the decree obtained in the earlier suit. After taking number of adjournments in the petition to set aside the sale, the first defendant has filed the present suit in the name of plaintiffs in order to defeat the rights of this defendant. There is no specific instances of immorality alleged in connecting the debts due to this defendant. There is also no such pleading in the plaint, the transactions of the first defendant are not illegal. Hence the suit is liable to be dismissed with exemplary costs. The second defendant also filed an additional written statement contending that this defendant obtained a decree in O.S. No. 27 of 1972 for the debts due to him against the first defendant in the capacity of the family manager. While executing the decree, the family properties of the first defendant were sold in court auction. The petitioner to set aside the sale was dismissed and the sale was confirmed on 20.8.1977 and the properties were delivered on 3.11.1977. The defendants 7 and 9 hear claimed tenancy rights in any proceedings and their claim of tenancy is false.

The case of the third defendant in his written statement is as under:

The business carried on by the first defendant is his kulachara business. The suit properties are not the joint family properties and the plaintiffs are not entitled to any share thereof. There was binding family debts at the time of the partition. The first defendant and plaintiffs 1 and 2 were in the management of the suit properties. There is no immorality or illegality on the part of the first defendant nor have the plaintiff pointed out and pleaded any such specific instances. There is no collusion between the defendants 2, 3 and 5 and there is also no conspiracy by them to deceive the first defendant as alleged. This defendant advanced amounts to the first defendant under mortgage bond. For recovery of the amounts due under the mortgage he filed O.S. No. 108 of 1971 and obtained a decree for sale of item No. 2 of A schedule property and the execution proceedings are pending. In that suit, the first defendant did not state that properties are joint family properties. In order to defeat the claim of this defendant, the first defendant instigated the plaintiffs to file this suit. The plaintiffs are aware of the activities of the first defendant. The decree is binding upon the plaintiffs. After partition between the first defendant and his co-sharers, the first defendant executed the mortgage deed. He has also executed a security bond in favour of the 5th defendant on 25.9.1967. All the transactions are for binding family necessity. No debt is incurred for illegal or ir moral purposes. The plaintiffs are not entitled to any share without paying the amounts due to this defendant. There is no prayer for cancellation of the decree. There is no demand for partition as against the creditors. There is no cause of action. The suit is barred by limitation and it is not properly valued. Hence the suit is liable to be dismissed with compensatory costs.

The case of the fourth defendant in his written statement is as under: The suit is a vexatious one brought about by the first defendant in the name of plaintiffs. The first defendant entered into an agreement with this defendant to sell items 1 to 3 of the A schedule properties in favour of this defendant for binding necessity of discharging the decree debts in O.S. No. 108 of 1971 and O.S. No. 27 of 1972. The first defendant has suppressed the three other claims against him in O.S. No. 107 of 1970,99 of 1972 and 83 of 1972. When this defendant came to know of the same, he issued notice calling upon the first defendant to discharge the above debts and execute the sale deed. When the first defendant refused to do so, O.S. No. 76 of 1974 was filed for specific performance. During the pendency of the suit, items 1 and 2 of A schedule were sold in court auction and the sale has also been confirmed. The agreement of sale is binding on the plaintiffs since they are the undivided sons and the same is for the binding necessity of discharging the antecedent decree debts. The first defendant has also sold item No. 1 in A schedule to one Govindammal and item No. 23 of A schedule to another person. Punjab National Bank and the Kumbakonam Mutual Benefit Fund Limited have also obtained money decrees against the first defendant. The debts are incurred by the first defendant in the course of his management of the family. There is no illegality or immorality as alleged in the plaint. The court sale as affected by lis pendens. The suit is bad for non-joinder of the above said alienees. The suit is not properly valued and proper court fee not paid. There is no prayer for declaration or cancellation of decree. It is the first defendant who set up the plaintiffs to file the present suit. Therefore, the suit may be dismissed with costs.

The fifth defendant has filed his written statement. In his written statement, he submitted as under: This defendant advanced Rs. 5,000 on promissory note and also on security bond. This defendant filed O.S. No. 107 of 1970 to recover the amount due from the first defendant. The properties have been sold in court auction and the petition to set aside the sale has been dismissed. The amount borrowed by the first defendant was for the family trade business. The javuli business is the kulachara business of the first defendant. There is no illegality or immorality on the part of the first defendant for obtaining loan. There is no pleading to this effect also. The plaintiffs are not entitled to attack the decree debt. The suit was filed only at the instigation of the first defendant. The suit is speculative one and therefore it is liable to be dismissed.

The 6th defendant filed his written statement. In his written statement he submitted as under: The suit as framed is not maintainable. There is no cause of action. The defendant purchased items 1 and 2 of A Schedule in court auction in execution of the decree in O.S. No. 107 of 1970. The petition to set aside the sale filed by the first defendant was dismissed for default. The petition to restore that petition was also dismissed on merits. During the pendency of the execution application and civil miscellaneous appeals preferred by the first defendant he has cut and carried away the kuruvai crops and also both kuruvai and thaladi crops in the year 1976-77 which are lawfully due to this defendant. The plaintiffs are not entitled to ask for partition without making provisions for all the debts. The plaintiffs have not impleaded all the creditors of the family. Since some of the properties were sold in court auction and delivery had also been taken, the plaintiffs are bound to pay the court fees on the reliefs of declaration and possession. The plaintiffs have suppressed the fact of private sale of item No. 23 of A schedule property to third party. Hence the suit is liable to be dismissed with costs.

The defendants 4 and 6 filed a joint additional written statement contending as under: The suit O.S. No. 76 of 1974 has been decreed for damages and refund of sale of advance paid by the 6th defendant. The plaintiffs are parties to the same. They have put forward their objections to the claim of the fourth defendant, but their objections were rejected. The decree has become final. The suit is barred by res judicata in respect of items 1 and 2 against these defendants. The defendants 1 and 9 have collusively and fraudulently fabricated lease deeds and obtained an order from the Tenancy Tahsildar. The first defendant has no right to do so since the properties have already been sold in court auction. The said order is void and without jurisdiction. Hence the 6th defendant is entitled to actual possession and the execution proceedings are pending in O.S. No. 107 of 1970. The plaintiffs have been instigated to set up 9th defendant to lend support to the first defendant''s attempt to continue in possession. The appeals preferred in the earlier proceedings were dismissed with costs. In all these proceedings, the first defendant alleged that he is in possession. The suit is engineered by the first defendant. The suit is liable to be dismissed with compensatory costs.

The case of the 8th defendant is as under: This defendantis a lesses of items 15,16,17 and 19of A schedule properties. He is cultivating tenant entitled to the benefits of the Tamil Nadu Act 25 of 1955. His possession cannot be disturbed and has to be protected by this Court. This defendant is not concerned with other disputes inter se between the other parties. The father of this defendant took the above items on lease as per the lease deed, dated 3.1.1971. Subsequently, this defendant became a direct tenant as per the lease deed dated 3.2.1974. There is also another rent deed dated 3.5.1977 in favour of the first defendant md plaintiffs 1 and 2. This defendant is not in arrears of rent. So also, the 9th defendant contended that he is a cultivating tenant of items 2 and 3 of A schedule lands having executed a lease deed dated 15.6.1976 in favour of the first defendant. This defendant''s name is also included in the record of tenancy rights. This defendant''s possession cannot be disputed. He is always willing to attorn the tenancy to anyone to whom the leasehold lands are allotted in this suit. Hence he required that suitable order may be passed to safeguard his interest.

On these pleadings, 8 issues and 7 additional issues were framed by the trial court. On the side of the plaintiffs the first plaintiff Thiru Ravichandran, Thiru Kaliamurthy, Tmt. Rukmaniammal, and Thiru Varadarajan were examined as witnesses. On the side of the defendants the second defendant examined himself as a witness. So also, the fourth defendant examined himself as a witness. The plaintiffs filed Ex. A-1 and A-2 in order to support their case. The defendants filed Ex. B-1 to B-11 in order to support their case. Considering the facts appearing in this case and after hearing the learned Counsel appearing on both sides, the trial court ultimately dismissed the suit with costs. The plaintiffs are further directed to pay exemplary costs to defendants 2, 4, 5 and 8 at Rs. 250 each.

It is against this judgment and decree the present appeal has been filed by the plaintiffs. The learned Counsel appearing for the appellants at the outset submitted in general various grounds as to why the debts incurred by the first defendant are not binding upon the plaintiffs and their joint family properties. Thereafter the learned Counsel made his submissions with regard to each one of the debts incurred by the first defendant. According to the learned Counsel for the appellants, the joint family consisting of the plaintiffs and the first defendant and their joint family business was manufacturing and sale of silk sarees. The learned Counsel submitted that the first defendant who happened to be the father of the plaintiffs and Kartha of the joint family was managing the joint family and joint family business. The learned Counsel pointed out that the first defendant started a new venture under the name and style of Ramavilas Cloth Emporium at Big Street, Kumbakonam in 1967 and thereafter it was shifted to Big Street, Kumbakonam under the name and style of Durgambiga Textiles. The learned Counsel submitted that this cloth emporium business is not the joint family business or the kulachara business. It was pointed out that the Ramavilas Cloth Emporium used to purchase finished products and cut pieces from outside and they were being sold in this cloth emporium. Therefore the learned Counsel pointed out that the new venture started by the first defendant is not the Kulachara business or the joint family trade of the joint family. According to the learned Counsel, the first defendant has no experience or skill in this line of new venture. The learned Counsel submitted that in the course of doing the new business, the first defendant incurred heavy debts. While doing the abovesaid new venture, the learned Counsel pointed out that the first defendant came into contact with one Nagaraja Pillai and defendant 2 and 5. According to the learned Counsel, the 2nd defendant created some documents purporting to be the pronotes and mortgage deeds etc., for the loans advanced to the first defendant for the alleged business of the first defendant viz., Durgambiga Textiles Javuli business and also for the alleged cinema theatre business. Therefore according to the learned Counsel the first defendant borrowed monies by affixing his signature in several documents such as mortgage deeds, promissory notes, collateral security bonds etc., from defendants 2 and 5. The learned Counsel contended that all these amounts were borrowed in his individual capacity and therefore they are not binding upon the plaintiffs. According to the learned Counsel these borrowings were also not for the binding necessity of the joint family. In the trial court a ground was taken to the effect that the debts incurred were for the purpose of immoral and illegal activities of the first defendant. This ground was not pressed into service in the appeal stage. The learned Counsel further contended that the decrees and other transactions entered into between the first defendant and defendants 2, 3, 4 and 5 are fraudulent and collusive and they are void and they will not be binding upon the plaintiffs'' 3/4th shares. He further contended that the said decrees and other dealings entered into by the first defendant are inoperative and ineffective since the debts were incurred not for the joint family necessity but for the individual necessity of the first defendant himself and therefore if at all the debts are to be discharged the responsibility is on the first defendant to discharge these debts from out of his own share. The learned Counsel further pointed out that at the time of partition deeds dated 12.7.1965 and 10.10.1965 there was absolutely no family debts and the family was receiving as income of Rs. 10,000 per year from the properties besides the family business yielding an annual income of Rs. 6,000 to Rs. 7,000. Therefore according to the learned Counsel, there is no necessity for the joint family to borrow any amount from any of the defendants nerein.

Respondents 1 to 4 entered appearance in this appeal. The counsel for respondents 2 and 3 appeared and submitted their arguments. No argument was advanced on behalf of the respondents 1 and 4. The other respondents have not entered appearance.

The learned Counsel appearing for the second respondent Mr. S. Gopalaratnam contended that the suit is a speculative one filed by the plaintiffs with the connivance of their father, the first defendant, in order to cause loss to these defendants. The defendant obtained a decree in O.S. No. 27 of 1972 against the first defendant The learned Counsel contended that the debt was incurred for the binding necessity of the joint family. The learned Counsel further contended that the cloth emporium business started by the first defendant is not a new venture since the family trade was manufacturing and sale of silk sarees. The learned Counsel contended that Ramavilas Cloth Emporium was also selling finished products obtained from outside and the piece goods. According to the learned Counsel even as per the partition deeds dated 12.7.1965 and 10.10.1965, the joint family was doing not only manufacturing and sale of silk sarees but also running a shop for the purpose of selling the textile goods. The learned Counsel submitted that it is not correct to say that the first defendant had become a tool in the hands of one Nagaraja Pillai and on account of his influence the first defendant contracted all these debts. The learned Counsel pointed out that the debts were incurred only for the purpose of binding necessity of the joint family and for the conduct of the joint family trade. The learned Counsel contended that it is also not correct on the part of the plaintiffs to say that the first defendant has no skill or experience in conducting the cloth emporium business. The learned Counsel pointed out that the first defendant resisted the suit O.S. No. 27 of 1972 and O.S. No. 7 of 1972 and after vehement contest the suits were decreed. After getting final decree on 24.8.1974, this defendant executed the decree. The learned Counsel pointed out that the plaintiffs herein represented by first defendant as next friend filed claim petition in E.A. No. 584 of 1974 in E.P. No. 13 of 1974 in O.S. No. 7 of 1972 and the same are dismissed on 5.11.1975. According to the learned Counsel, no appeal has been filed within the prescribed time limit against the above said orders. Therefore the learned Counsel contended that the judgment rendered in the above said suits will operate as res judicata against the plaintiffs herein. The learned Counsel submitted that after taking several adjournments in the petition to set aside the sale, the first defendant has filed the present suit in the names of the plaintiff fraudulently in order to prevent this defendant from enjoying the fruits of the abovesaid decrees. The learned Counsel also pointed out that the debts due under the decree in O.S. No. 27 of 1972 was incurred by the first defendant in his capacity as the family manager. In the execution of the decree the properties of the first defendant were sold in court auction. Petition to set aside the sale was dismissed, the sale was confirmed on 20.8.1977 and the properties were delivered on 3.11.1977. The learned Counsel therefore contended that the judgment and decree rendered by the trial court in favour of his client need not be disturbed.

On behalf of the third respondent, it was contended that this defendant obtained a mortgage bond from the first defendant and in order to recover the amount due under the mortgage O.S. No. 1.08 of 1971 was filed. The said suit, was decreed for sale of item No. 2 of A schedule properties. The execution proceedings are now pending. The learned Counsel pointed out that in that suit the first defendant failed to state that the properties are joint family properties and the first defendant has fraudulently set up the plaintiffs to. file the present suit. The first defendant was borrowing the money for family necessity. This defendant pointed out that the first defendant executed a security bond in favour of the 5th defendant on 25.9.1967. According to the learned Counsel all these transactions are true and the first defendant has got right to do so. According to the learned Counsel all the debts were incurred for binding family necessity. Again, the learned Counsel contended that there is no prayer in the suit for the cancellation of the above said decree. There is no demand for partition as against the creditors. It was therefore pleaded that the present suit filed by the plaintiff was engineered by the first defendant only for the purpose of preventing the creditors from realising their lawful dues from out of the joint family properties.

The learned Counsel appearing for the appellants as well as the respondents relied upon various decisions in order to support their respective cases. The learned Counsel for the appellants while elucidating what is joint family trade and minor''s liability to joint family debt relied upon a decision in Sanyasi Charan Mandal v. Krishnadhan Banerji and Ors. AIR 1922 P.C. 237 : 43 M.L.J. 41 : 67. I.C. 124 : 49 I.A. 108 : 49 Cal. 560. This decision is an authority for the proposition that

The kartha of a joint family cannot impose on a senior member of it the risk and liability of a new business started by himself and the other adult members.

In this respect, reliance was also placed on the decision in AIR 1932 182 (Privy Council) . In this decision, it was held that

The mortgage was unenforceable against members who were minors when it was executed to the extent to which the advance was for carrying on the business; and that the mortgagees could not contend that they were entitled to a decree for the sale of the minor''s interest in the joint estate to discharge their father''s debts, as that contention had not been raised in India and involved questions of fact.

Another decision relied on by the learned Counsel was that reported in The Canara Banking Corporation Ltd. Vs. The South Indian Bank Ltd. and Others, . In this decision it was held that

A business started by the sale surviving coparcener with joint family funds and subjecting the joint family property to the risk and liabilities of such business should be considered to be joint family business in the profits of which a subsequent born son would be entitled to a right by birth and to the liabilities incurred in which he would be subject.

The learned Counsel also relied upon a decision reported in Sankaranarayanan and Another Vs. The Official Receiver, Tirunelveli and Others, . In this decision, this Court held as under:

When the business started by the sole surviving coparcener is not the kulacharam of the family obligations incurred therein, cannot bind the minor coparceners in the family.

Another decision relied upon by the learned Counsel was that reported in S. Krishnaswamilyer, late minor by guardian maternal uncle, Doraswami v. Bava Ramanadhan 68 M.L.J. 251 : AIR 1935 Mad. 314 wherein it was held that

The minor son''s interest in the joint family property could not be made liable for the suit claim which admittedly related to the price of goods supplied to the new business carried on by the eldest son in partnership with the stranger.

In order to support its conclusions the trial Court also relied upon certain decisions, one such decision is reported in Prasanjit Mahtha Vs. The United Commercial Bank Ltd., , wherein the Patna High Court held that

If the family is a trading family and the extended business is not more hazardous or speculative than the one previously existing it may not be regarded as a new business.

In this decision it was also held that

A surety bond creates a personal liability to pay the debt and comes, within the meaning of the term ''Vyavaharika" and the joint family estate in the hands of the son is liable for the payment of the same in view of his pious obligation to pay his father''s debt.

The learned Counsel for the appellant pointed out that the Patna High Court in the abovesaid decision did not decide the issue as arising in the present case, since no argument was advanced on this aspect of the matter. But it remains to be seen that the abovesaid propositions of law were adumbrated in the abovesaid decision. The trial court also relied upon a decision reported in Desu Rattamma Vs. Mothey Narayana Rao and Others, . In this decision, this Court held as under:

The business was new not because the partners were different nor because the commodity dealt with was not the same but because its nature was unlike that of the original business.

Yet another decision relied on by the trial court was that reported in Kumbakonam Bank Limited Vs. K.R.M.P. Shanmugham Pillai and Others, . It was pointed out in this decision that

Heredity in business should be the touchstone and not the difference or novelty in the nature of the commercial undertaking. To import unnecessary limitations and characterise the extension of a business as a new business would constitute an undue curtailment of commercial adventure and enterprise which is the very life of a hereditary trading family.

The learned Counsel appearing for the respondents in order to support his case relied upon a decision reported in Bhupatiraju Sreeramaraju and Others Vs. Nadimpalli Pullam Raju and Another, , wherein it was held as under:

Where a new business is started by a sole surviving coparcener of a Mitakshara family the business becomes from its origin a family business and persons born subsequently are not competent to say that the risk and liability of the new business cannot be imposed on them. The risk and liability has been taken by the family and the new-comers in the family must share the debts of the new business along with the other assets and liabilities of the family.

In this respect another decision relied on by the learned Counsel for the respondents was that reported in Rangammal and Others Vs. The Union of India (UOI) and Others, . In this decision, it was held that,

The new business started by the manager need not be allied to the ancestral business. But it should not be speculative.

Reliance was also placed on the decision reported in Loganathan and Others Vs. Ponnuswami Naicker and Others, , wherein it was held that before saddling with the debt on a son on the ground of pious obligation of father''s debts, the character of debts when first incurred to be examined in such cases.

In the matter of elucidating what is vyavaharika debt, and the liability of a sum to discharge the debt incurred by the father under the theory of pious obligation, the learned Counsel for the respondents relied upon the following decision, as reported in,

Sivakumar and Anr. v. Somasundaram and two Ors. 1966 T.L.N.J. 158; 2. Selvaraj v. Ramamoorthi Naidu and Ors. (1989) 2 L.W. 359; 3. S. Govindasaminathan v. Ranganathan (1989) 1 L.W. 483; 4. Chinnappagiri Nagireddi v. Venkadari Sommppa AIR 1943 Mad. 1 : ILR 1943 Mad 248.

We have heard the rival submissions and carefully considered all the decisions relied upon by both the counsels. We are in entire agreement with the principles of law adumbrated in those decisions. But the decision in each case depends upon its own facts. Hence let us consider the facts appearing in this case, in the light of the judicial pronouncements cited supra. The only question that arises for consideration in this appeal is whether the debts incurred by the first defendant is for joint family necessity and if so whether the creditors can proceed against the joint family properties.

The plaintiffs/appellants herein are the sons of the first defendant. The first defendant and his brother Rajamannar and Gopalakrishnan are the sons of Govindasamy Chettiar. The said Govindasamy Chettiar died on 14.10.1964. After his death, his three sons and his three daughters and his widow divided some family properties on 30.1.1965. Subsequently, the first defendant and his brothers divided the properties that were allotted to them in the partition deed dated 30.1.1965. This fact is borne out under Ex. A-1, dated 12.7.1965 registration copy of the partition deed. Under this document C schedule properties were allotted to the first defendant. Subsequent to this Ex. A-1 other remaining properties have been divided between the first defendant and his brothers. According to Ex. A-2 registration copy of the partition deed dated 10.10.1985 the business of manufacturing and sale of silk sarees, cinema machinery and other cinema accessories were allotted to the first defendant and the javuli business was allotted to the other brothers. It is also seen from the abovesaid partition deed, that the family was running another ordinary javuli shop apart from the javuli business in manufacturing and sale of silk sarees. Therefore it remains to be seen that the joint family was not only running a business, by manufacturing and sale of silk sarees, but also the joint family was running a javuli business through an ordinary javuli shop. In the year 1967 admittedly, the first defendant was running a javuli shop in the name and style of Ramavilas Cloth Emporium at Big Street Kumbakonam. Thereafter it was shifted to the Big Bazaar Textiles. The case of the appellants was that only manufacturing and sale of silk sarees alone is the joint family trade and running a cloth emporium is not a joint family trade. Therefore according to the appellants the starting of Ramavilas Cloth Emporium and the Durgambiga Textiles are new ventures, which are not the joint family trade. Further according to the appellants, the first defendant did not have skill and experience in running the new venture. Therefore any debt incurred in relation to the abovesaid new venture will not be binding upon the joint family and the joint family properties. Now the question is whether the running of javuli shop in the name of Ramavilas Cloth Emporium and Durgambiga Textiles is a new venture or an allied business of the joint family trade already in existence. According to the respondents herein, running a javuli business in the name of Ramavilas Cloth Emporium and Durgambiga Textiles is not a new venture, but it is the allied business of their joint family trade. The respondents in order to show that running a cloth emporium is also a joint family business relied upon Ex. A-2 partition deed dated 10.10.1965, wherein it was stated that the joint family was not only having business in manufacturing and sale of silk sarees, but also having business in running an ordinary javuli shop. Therefore, according to the respondents it cannot be stated that the starting of javuli shop in the name of Ramavilas Cloth Emporium and Durgambiga Textiles and selling of piece goods and other finished products purchased from outside agencies is not their family trade. In short, according to the respondents even running a javuli shop is also their family trade and any debt incurred for the purpose of running the said business has got to be discharged by the joint family out of their family properties. In view of the facts appearing in this case, we consider that there is some force in this line of argument advanced by the respondents.

The fact remains that even according to the appellants herein the joint family was running a joint family business. According to the appellants, the joint family business consisted of only manufacturing and sale of silk sarees and therefore running a cloth emporium or textile shop is not a I joint family trade according to their kulachara. The materials on record reveal that the joint family from the beginning was doing family trade not only in manufacturing and sale of silk sarees but also in running a javuli shop in which they are selling textile goods. Ex. A-2 partition deed clearly states that the joint family was also running an ordinary javuli shop. A javuli shop is meant for selling textile goods. In a textile emporium along with other textile goods, selling piece goods is not out of context since piece goods are also allied textile products. Therefore in the present case also, the first defendant while running a javuli shop in the case of Ramavilas Cloth Emporium and in the name of Durgambiga Textiles was doing joint family business and hence it is not a new venture, either speculative or hazardous trade as contended by the appellants herein. Accordingly, we uphold the finding of the trial court in this aspect.

Now it remains to be considered whether the debts incurred by the first defendant was for joint family business. Even according to the appellants herein, the first defendant borrowed debts for the purpose of running the abovesaid business. But according to the appellants since the business is not a joint family business, the debts borrowed by the first defendant for the purpose of doing the abovesaid business will not be binding upon the plaintiffs and the joint family properties. We have already come to the conclusion, on an appraisal of facts appearing in this case, that the running of the Ramavilas Silk Emporium and Durgambiga Textiles were also joint family business. If that is so, the debts incurred by the first defendant in the course of running the abovesaid business has got to be discharged by the joint family. There is also no proper pleading and evidence on record to show that the first defendant under the influence of one Nagaraja Pillai signed various documents as alleged. It also remains to be seen that according to the defendants moneys were advanced for running the business. In some of the proceedings initiated by the creditors the first defendant and the appellants herein took several steps to resist the decree holders from realising the fruits of the decree. Therefore the appellants were aware of many of the prior proceedings. The evidence also suggests that the appellants and the first respondent are living together. There is no evidence on record to show that the appellants were not aware of the prior proceedings. Even if the appellants were minors at the time when the debts were incurred by the kartha of the joint family, since the debts were incurred for joint family necessity, the appellants are liable to discharge the same. According to the decisions rendered in the prior proceedings the debts were incurred for joint family necessities. Therefore, at this stage it is not open to the appellants to contend that the debts were not incurred for joint family business and joint family necessity and they are not liable to discharge the joint family debts. In the trial Court, a plea was taken to the effect that the debts were incurred for the immoral and illegal purposes. But that plea was not pressed into service. Therefore, it the debts are not for illegal and immoral purposes, then, the theory of pious obligation will come into operation. So viewed from any angle, it cannot be said that the trial court was not correct in dismissing the suit.

We have already set out the facts in detail with regard to various amounts borrowed by the first defendant from the creditors. The creditors approached the courts and obtained the decrees. The decrees were executed. In some of the execution proceedings, properties belonging to the joint family were sold in court auction. In some cases, the execution petitions are now pending. In many of the earlier proceedings the appellants herein represented by their father contested those proceedings. They raised, in those proceedings all the points raised in the present appeal. All those points were negatived in those proceedings. As against those proceedings appeals were not filed by the appellants herein. The appellants have not filed any suit to set aside the decree obtained by the creditors in those proceedings. Hence the findings given in those proceedings are binding on the appellants. In the written statement filed by the defendants they have set out their respective cases. The plaintiff/appellants herein have not filed any reply statement to controvert the allegations contained in the written statement.

Thus on a careful consideration of the facts appearing in this case in the light of the judicial pronouncement cited supra, we uphold that judgment and decree rendered by the trial court in dismissing the suit with costs. So far as the defendants 2, 3, 5 and 6 are concerned, the trial court awarded exemplary cost of Rs. 250 each. But we consider there is no necessity for awarding such exemplary costs. Therefore, we set aside this portion of the judgment and dismiss the suit with costs instead of exemplary costs. To the above said extent, the judgment and decree of the trial court is confirmed and the appeal is dismissed with costs.